Nalin S. Sharma & Ors. v. The State of Maharashtra

Smt. V. R. Bhosale APP for the State. Mr.B.R. Patil for the respondent no.2. A N D CRIMINAL APPLICATION NO.641 OF 2010 )..Applicant Vijay Kadu Vs. The State of Maharashtra & Anr. )..Respondents Mr.Amit Desai Senior Advocate i/by Mr.Ganesh Gole for the applicant. ---- Smt.V.R.Bhosale APP for the State. Mr.B.R.Patil for the respondent no.2. Coram : R.S.MOHITE,J Date : 5th April, 2010 PC 1 Heard all sides. Both these applications are for grant of anticipatory bail. Since both the applicants are shown as accused in C.R.No.I-109 of 2009 registered by the Kharghar 2 police station for alleged offences under Sections 406, 420, 467, 468, 470 read with 34 of IPC and the allegations against both of them are similar in nature, both the applications can be disposed of conveniently by this common order. 2 The applicants are partners of a partnership firm by name Sai Developers . The FIR has been registered by the Kharghar police station on a complaint made by one Assistant Sub Inspector Gopichand Sanap on 17.6.2009. On perusal of the FIR it seems to be the gist of the complaint that sometime in the year 1995-96, a Senior Police Officer who retired as Deputy Commissioner of Police by name Sitaram Kapse formed two proposed police societies by name Shantisagar Society and Swami Samartha Society with the specific objective of providing residential flats to police personnel. Initially, Shantisagar Police Co- operative Housing Society was alloted a plot at Ghatkopar and some police personnel had paid monies for being alloted the flats in the building to be constructed at Ghatkopar. The grievance is out of such monies collected, Sitaram Kapse diverted an amount of Rs.1.27 crores for purchase of 2 additional plots being plot nos.61 & 62 at Kharghar. The complaint does not allege that the money was directly mis-appropriated by Sitaram Kapse and it appears to be the admitted position that amount of Rs.1.27 crores was in fact paid to CIDCO. On the basis of such payment, on 15.5.1997 plot nos.61 & 62 were alloted by CIDCO to the aforesaid two societies for a total consideration of Rs.3 crores. The complaint narrates that as Sitaram Kapse did not pay further amounts on schedule and did not start the development as required under the terms of allotment, Rs.27 lakhs was levied as forfeiture penalty and the plots were forfeited. According to the complainant after the cancellation of the allotment, a representation was made to the Minister of Urban Development who after considering the fact that allotments were in the interest of police 3 personnel, as a special case, re-alloted the said plots on 4.6.2003. In so far as allegation of forgery is concerned, the contention in the complaint is that accused Sitaram Kapse mis- utilised the documents which were lying in his possession and signed by members of the Ghatkopar Society and used these documents for securing the allotment of the Kharghar plots. 3 In so far as present applicants are concerned, they are partners of a development company which has come into picture sometime in the year 2002, and in whose favour ultimately a development agreement has been signed by the society on 8.9.2003. From the affidavit dated 3.4.2010 filed by the Investigating officer, in so far as present applicants are concerned, it is stated that the present development company had paid an amount of Rs.1 crore to the society which has executed a development agreement in their favour. According to the Advocate for the applicants the balance amounts for the said plots have also been paid by cheques to CIDCO by the development company. 4 The original complainant in this case has filed an affidavit dated 23.2.2010. In his affidavit in paragraph nos.2 & 3 he has stated as follows :- “I say that the said complaint was filed at Kharghar Police Station against Mr.Kapse as he had cheated the Policemen by collecting huge funds from them by giving false promises of giving flats at low prices. The Applicant submits that the aggrieved Policemen had a meeting in which they amicably come to the conclusion that the other persons who have been arraigned as accused in C.R.No.I-109/2009 registered at Kharghar Police Station namely Shri Nalin S. Sharma, Shri Suresh M. Patkar & 4 Mr.Vijay J. Kadu had never met them and in fact they were also victims at the hands of Mr.Kapse. I say that in the present case Mr.Kapse was arrested and after the charge sheet was filed he was released on bail by this Honourable Court. “ I further say that the grievance of the Policemen is against Mr.Kapse and they have no grievance against Shri Nalin S. Sharma, Shri Suresh M.Patkar & Mr.Vijay J. Kadu as no money was ever paid to them by any of the Policemen nor any promises were made by them to any of the Policemen regarding allotting of flats at lower price.” The Advocate for the complainant states that his client has no grievance against these applicants. 5 In the affidavit filed by the Investigating officer dated 3.4.2010 in paragraph-12, he has mentioned that as per the say of the CIDCO Officials, the plots are not reserved only for police personnels but they are also open to general public. In paragraph no.9 he has stated that CIDCO has executed an agreement of lease registered with Chaturbhuj Co-op. Housing Society (which was the new name given after amalgamation) and that present applicants have developed these plots with the permission of CIDCO and have, after getting occupation certificate, given possession of the flats to the prospective society members authorised by CIDCO. In paragraph-10, he has stated that out of the 29 police members, 19 police members have given their resignations. There are 10 police members who remain as members. In pursuance of an order passed by this Court, the applicant Nalin S. Sharma in Criminal Application No.640 of 2010 and the applicant Vijay Kadu in Criminal Application No.641 of 2010 have both filed affidavits stating that in so far as remaining 10 5 police members who have been specified in paragraph no.6 of the affidavits, the units will be made available by the developer for the said police persons upon their paying consideration and dues. 6 In the aforesaid background, it prima facie does not appear that this is a case which requires custodial interrogation. The dispute prima facie appears to be a civil in nature and in the circumstances, it is directed that in the event of their arrest in pursuance of C.R.No.I-109/2009 registered by the Kharghar police station, the two applicants will be released on bail in the sum of Rs.25,000/- each with one surety each in the like amount subject to the condition that they will report to the Investigating officer as and when called upon to do so in writing. It is made clear that the observations made in this order are limited for deciding these applications and will not be used at the stage of the trial or in any case if any member of the society has filed any application to vindicate his rights in any Civil Court. Application stands disposed off. (R.S.MOHITE,J) 6 7